Re K and H (Children)

JurisdictionEngland & Wales
JudgeLady Justice Black,Lord Justice McFarlane,Master of the Rolls
Judgment Date22 May 2015
Neutral Citation[2015] EWCA Civ 543
Docket NumberCase No: B4/2015/0130
CourtCourt of Appeal (Civil Division)
Date22 May 2015

[2015] EWCA Civ 543

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY COURT SITTING AT LEICESTER

HHJ BELLAMY SITTING AS A DEPUTY HIGH COURT JUDGE

[2015] EWFC 1

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE MASTER OF THE ROLLS

Lady Justice Black

and

Lord Justice McFarlane

Case No: B4/2015/0130

Re K and H (Children)

Phillipa Whipple QC, Sarah Hannett, andMatthew Donmall (instructed by the Government Legal Department) for the Appellant, the Lord Chancellor

Lorna Meyer QC and Kirsty Gallacher (instructed by LDJ Solicitors) for the First Respondent Mother

Deirdre Fottrell QC, Marlene CayounandNoel Arnold (instructed by Coram Children's Legal Centre) for the Interveners: the Association of Lawyers for Children and Coram Children's Legal Centre

Hearing dates: 29–30 April 2015

Master of the Rolls

Master of the Rolls:

1

The first respondent ("the mother") is the mother of Y (now aged 17), K (now aged 6) and H (now aged 4). K and H are full siblings. Y (their half sibling) is the mother's child of a previous relationship. In July 2013, Y made an allegation that when she was 15 years of age she was sexually abused by the father of K and H ("the father"). The father has always denied the allegation. The proceedings in the court below concerned in part the issue of what contact arrangements or orders should be made between K and H and the father.

2

HH Judge Bellamy decided (rightly) that, before the court could consider the father's future contact with K and H, it was important to establish whether Y's allegation was true. A fact finding hearing was listed to begin on 14 January 2015 at which he directed that Y should give oral evidence. The mother was legally aided. Although he had been legally represented from time to time, by the time of the decision with which this appeal is concerned, the father was a litigant in person. He did not apply for legal aid: he appeared not to be eligible for legal aid as he appeared not to satisfy the "means test" set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 ("the Financial Resources Regulations").

3

In a judgment handed down on 5 January 2015, the judge decided that (i) it was not appropriate for the father to cross-examine Y (in fact he did not wish to do so); (ii) it was not appropriate for him (the judge) to put questions to Y to test her allegation against the father; (iii) the court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and (iv) the costs of the legal representative should be borne by Her Majesty's Court and Tribunal Service ("HMCTS").

4

The Lord Chancellor appeals against this decision with the permission of the judge. The proposition that the court has the power to order the Lord Chancellor to provide public funding for legal representation outside the legal aid scheme provided for in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") has the endorsement of the observations of Sir James Munby, President of the Family Division in Q v Q [2014] EWFC 31, [2015] 1 WLR 2040 and in In re D [2014] EWFC 39.

The relevant legislation

5

Section 1 of the Courts Act 2003 ("the 2003 Act") imposes a general duty on the Lord Chancellor to

"ensure that there is an efficient and effective system to support the carrying on of the business of….the family court….and that appropriate services are provided for those courts."

6

Section 31G(6) of the Matrimonial and Family Proceedings Act 1984 ("the 1984 Act") provides:

"Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined; and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper."

7

Section 1 of LASPO provides that the Lord Chancellor "must secure that legal aid is made available in accordance with this Part". 'Legal aid' is defined as:

"civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil aid)…."

8

Section 9 provides:

"(1) Civil legal services are to be available to an individual under this Part if—

(a) they are legal services described in Part 1 of the Schedule 1, and

(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."

9

Section 11 provides:

"(1) The Director must determine whether an individual qualified under this Part for civil legal services in accordance with—

(a) section 21 (financial resources) and regulations under that section, and

(b) criteria set out in regulations made under this paragraph."

10

The financial eligibility for legal aid (or "means test") is now governed by the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 ("Financial Resources Regulations"). The merits test for legal aid is now governed by the Civil Legal Aid (Merits Criteria) Regulations 2013.

11

Section 18 of LASPO authorises the Director of Legal Aid Casework to determine whether an individual qualifies for legal aid for representation for the purposes of criminal proceedings except where a court is authorised to make the determination under regulations under section 19. Section 19(1) provides that regulations may provide that:

"a court before which criminal proceedings take place or are to take place, is authorised to determine whether an individual qualifies under this Part for representation for the purposes of criminal proceedings of a prescribed description."

12

Section 21 provides that there cannot be a determination that an individual qualifies for services unless their financial resources have been considered and it has been determined that they are eligible for legal aid. Regulation 8 of the Financial Resources Regulations sets the level of disposable income under which an individual will be eligible for legal aid at £733 per calendar month.

The judgment

13

As I have said, the judge concluded that Y should give oral evidence and that the father should not cross-examine her. There is no challenge to either of these decisions. At para 16 of his judgment, the judge recorded the father's evidence that he was in full-time employment earning £1350 net per lunar month (approximately £1460 per calendar month) and that the only allowable deductions for the purposes of assessment of his financial eligibility for legal aid were rent (£400 per month) and child support (£100 per month). This left the father with a disposable income of £960 per month, which was greater than the sum of £733 per month specified in the Financial Resources Regulations. At para 17 he said that, although he had not undertaken the calculation with the sophistication and refinement required by the Financial Resources Regulations, he was satisfied that it was sufficiently reliable to indicate that the father was financially ineligible for legal aid. In these circumstances, the possibility of exceptional case funding under section 10 of LASPO did not arise.

14

At para 19, the judge stated that out of the disposable income of £960 per month, the father had to meet a number of necessary living expenses that were not allowable deductions. At para 20, he concluded: "For the purpose of the decisions I have to make I am satisfied that the father does not have the resources to pay privately for legal representation". At para 22, he noted that the father had been legally represented at an earlier stage of the proceedings and had said in a written statement:

"I am now self represented in this matter as both the unwillingness of my counsel to challenge the so-called evidence and information filed in this case and the high financial impact of these proceedings." (sic)

15

The father said that he had spent £2800 on solicitors' fees. Having reiterated at para 23 that the father could not afford to pay for legal representation, the judge said:

"….there are likely to be people in this country with disposable incomes of more than £733 per month who are genuinely unable to fund the cost of legal representation. For those who fall into that category, the application of the approach suggested by Miss Whipple [viz that if the father does not pay for representation then Y's evidence must go unchallenged] would appear likely to lead to a breach of an unrepresented litigant's article 6 rights."

16

The judge then considered the application of section 31G(6) of the 1984 Act. At para 41, he said that he was satisfied that it would be "wholly inappropriate" for him to question Y himself. He shared the "profound unease" expressed by Roderic Wood J in H v L and R [2006] EWFC 3099 (Fam), [2007] 2 FLR 162 at para 24. In so far as the judge explained why he considered it to be inappropriate for him to question Y, the explanation seems to be this:

"42. Y's allegations against the father are pivotal to determining welfare issues in respect of K and H and in particular the issue of the nature and extent of their future contact (if any) with their father. In determining that issue K and H's welfare must be the court's paramount consideration. In arriving at a decision about the children's welfare interests the court must consider the factors set out in the welfare checklist in s.1(3) of the Children Act 1989. In this case a finding that the father has...

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